textual metanoia

And their reply:

We apologize for the delay in responding to your email.  We are
currently receiving higher email volume than normal, and are attempting
to answer all email as quickly as possible in the order they arrive.

We understand your concerns regarding issues you are experiencing with
your peer-to-peer (P2P) applications. To ensure a consistently high
level of service for all Rogers customers, it is necessary to put limits
on the amount of network bandwidth available for certain types of
applications. This process is called traffic regulation (rate-limiting,
traffic shaping, throttling).

As peer-to-peer (P2P) applications have grown in popularity, their share
of overall network traffic has increased dramatically. In particular,
the application Bittorrent uses all of the space available for uploads.
To ensure that a relatively small number of applications do not slow
service for everyone, Rogers limits the space available for P2P uploads.
This ensures all customers have a high level of service for
time-sensitive tasks like sending email, requesting web pages or voice
messaging.

Rogers does not block any type of Internet traffic or application. Nor
do we monitor the content of customer communications or activities on
the Internet. Our traffic regulation is based on the type of
application, not the way it is used.

We thank you for your understanding in this matter.

If you have any further questions or comments regarding our service,
please fill out the online form on our Customer Support page listed
below or contact us by phone at 1-888-288-4663.

Regards,
Gigi C.
Rogers Yahoo! Hi-Speed Internet
Electronic Support Group

Customer Support: http://help.yahoo.com/rogers
Email: internetsupport@rci.rogers.com

Rogers Hi-Speed Internet Support

And then my reply:

Be this as it may, my End User License Agreement (EULA) does not suggest that my traffic can be purposively throttled based on my activities.  The EULA states that traffic cannot be guaranteed to be delivered in a timely manner, or ever at all, however, a lack of guarantee is a very different thing from purposely not providing me a purchased service due to my consumer habits.  On any reasonable interpretation of consumer law you may not sell a service that is purposely withheld.  Perhaps you should state in the EULA that all bittorrent traffic will result in termination of service, but then, of course, most of your customers would go elsewhere.  As it stands, you are selling me a service that involves false advertisement, I can not receive anywhere near my “max” download speed of 6MB/s, and this is not due to problems beyond Rogers’ control, instead it is being purposely restricted.

My next course of action will be to:

1) Post your reply on my blog (http://www.iqdupont.com/blog), and attempt to generate as much transparency and press as possible within the internet-savvy people.
2) Contact the Globe and Mail about exposing Rogers’ illegal behaviour.
3) Contact my legal representative about the possibility of a class action suit, and invoking the support of the Electronic Frontier Foundation.

Should you wish start providing me with appropriate service, please feel free to contact me at [EDITED].

Sincerely,
Isaac Quinn DuPont

Rogers is my terrible ISP. When I live in Toronto coming this September, I am going to join the ISP co-op. Currently I am paying the top teired Rogers connection ($50/month!), yet they are shaping my traffic down to an unbearable dial-up type speed (currently I max out around 40kbps). Stangely, when I turn off my bittorrent client (Azureus) I can pull in a few hundred kb/s (closer to their advertised 6Mb/s download speeds). (I am being satirical, Rogers’ traffic shaping is well documented elsewhere). Apparently no one told Rogers that, in Canada, we have a Private Copy Levy that makes it legal for me to download copyrighted material (for backup purposes, of course). Thus, my bittorrent bandwidth is in no way illegal. Not that Rogers cares though, since they strictly forbid many things that are legal (in Canada): you cannot,
“disseminate or otherwise make available obscene, profane or pornographic material; post, upload, transmit, disseminate or otherwise make available content that is unlawful, threatening, abusive, libelous, slanderous, defamatory or otherwise offensive or objectionable; unlawfully promote or incite hatred; or post, upload, transmit, disseminate or otherwise make available objectionable information,”

Of course, this End User Agreement would never stand up in court (can’t download regular porn apparently!). Further, the EULA, as always, makes no claims of guaranteeing service: “WE DO NOT GUARANTEE OR WARRANT THAT ANY DATA OR FILES SENT BY OR TO YOU… WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM, OR TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME”. But, according to any reasonable interpretation of of Canadian Consumer law you cannot sell a service that does not exist, or falsely represent the service (beyond natural difficulties like occasional service interuptions due to problems beyond their control). Rogers, however, is intentionally throttling my connection. In other words, they are advertising a service and intentionally not providing me with the service. I am as mad as hell.